The Gorsuch Effect

Supreme Court Justice Neil Gorsuch tipped the scales against U.S. laborers in a decision that will make it infinitely harder for private sector employees to sue their employers.

Gorsuch was the swing vote that secured the 5-4 majority, which ruled that private sector employees can not ban together to sue their employers over violations of federal labor laws.

He also wrote for the majority, arguing that the 1925 Federal Arbitration Act supersedes the National Labor Relations Act, meaning that employees who sign arbitration agreements must do so individually and can not join together.

“The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written. While Congress is of course always free to amend this judgment, we see nothing suggesting it did so in the NLRA — much less that it manifested a clear intention to displace the Arbitration Act. Because we can easily read Congress’s statutes to work in harmony, that is where our duty lies.”

In classic RBG style, Justice Ruth Bader Ginsburg wrote a blistering dissent in response to the decision:

“The inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.”

Ginsburg was joined in her dissent by Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor.

She continued to predict the outcome of the decision, saying:

“Employers, aware that employees will be disinclined to pursue small-value claims when confined to proceeding one-by-one, will no doubt perceive that the cost-benefit balance of underpaying workers tips heavily in favor of skirting legal obligations.”

Additional consequences of the Gorsuch effect include worsening conditions for civil rights class actions fighting against discrimination and sexual violence.

The Economic Policy Institute released a study that shows that 56% of private sector employees are subject to mandatory individual arbitration procedures, meaning that more than half of the country’s nonunion workers are banned from taking collective legal action against their employers.

“What this says is that when you buy something, use something, or work for someone, that entity can require you to waive your right to use public courts.” – Judith Resnik, professor of law at Yale University



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